Opinion
DRB 22-100
11-07-2022
In the Matter of Dorothy L. Wright An Attorney at Law
Timothy M. Ellis Acting Chief Counsel
Argued: September 15, 2022
District Docket No. XIII-2020-0007E
Timothy M. Ellis Acting Chief Counsel
DECISION
Hon. Maurice J. Gallipoli, A.J.S.C. (Ret.), Chair
Sarah Mahony Eaton appeared on behalf of the District XIII Ethics Committee. Marc David Garfinkle appeared on behalf of respondent.
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us on a recommendation for a censure filed by the District XIII Ethics Committee (the DEC). The formal ethics complaint charged respondent with having violated RPC 1.1(a) (engaging in gross neglect); RPC 1.1(b) (engaging in a pattern of gross neglect); RPC 1.3 (lacking diligence); RPC 1.4(b) (failing to communicate); RPC 1.6(a) (failing to maintain confidential information); RPC 1.14(a) (failing, as far as reasonably possible, to maintain a normal client-lawyer relationship with a client whose capacity to make adequately considered decisions in connection with the representation is diminished); RPC 1.14(b) (failing to take reasonably necessary protective action and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian, when the lawyer reasonably believes that a client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and the lawyer cannot adequately act in the client's own interest); RPC 1.16(a)(1) (undertaking or failing to withdraw from a representation if it will result in a violation of the Rules of Professional Conduct or other law); and RPC 1.16(b)(7) (failing to withdraw from a representation when good cause for the withdrawal exists).
For the reasons set forth below, we determine that a reprimand is the appropriate quantum of discipline for respondent's misconduct.
Respondent earned admission to the New Jersey bar in 1976. During the relevant timeframe, she was a partner at Stephen M. Goldberg, P.C., with a law office in Green Brook, New Jersey.
In 1996, we admonished respondent for her violation of RPC 1.5(b) (failing to set forth in writing the basis or rate of the attorney's fee) and RPC 1.4(a) (failing to communicate). In the Matter of Dorothy L. Wright, DRB 96095 (May 2, 1996) (regarding the RPC 1.4(a) violation, respondent failed to keep her client reasonably informed regarding the status of a bankruptcy matter, return the client's telephone calls, and provide the client with copies of six letters). (Wright I).
Two years later, in 1998, respondent received a reprimand for her violation of RPC 1.3 and RPC 1.4(a) and (b). In the Matter of Dorothy Wright, DRB 97-339 (November 20, 1997) at 11 (in two client matters, respondent failed to diligently represent her client and, in one client matter, failed to communicate; in imposing a reprimand, we considered respondent's prior discipline for similar misconduct, specifically, her 1996 admonition for having violated RPC 1.4(a)), so ordered, 154 N.J. 7 (1998). (Wright II).
Most recently, in 2013, respondent received a second reprimand for her further violation of RPC 1.4(b) and RPC 1.5(b). In re Wright, 213 N.J. 247 (2013). (Wright III).
We now turn to the facts of this matter, which are largely undisputed, although respondent denies having violated any RPCs.
On August 8, 2019, respondent filed a Chapter 7 bankruptcy petition on behalf of the grievant, Raymond Jackson, in the United States Bankruptcy Court for the District of New Jersey. Respondent previously had represented Jackson in a 2005 bankruptcy petition. She claimed to have provided Jackson with a retainer agreement for the 2019 bankruptcy matter but maintained that he did not sign that document.
In a Chapter 7 bankruptcy, the bankruptcy trustee gathers and sells the debtor's nonexempt assets and uses the proceeds of those assets to pay creditors. See Chapter 7 - Bankruptcy B https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basicsasics | United States Courts (uscourts.gov) (visited October 27, 2022).
The retainer agreement was not part of the record, and the DEC did not charge respondent with having violated RPC 1.5(b).
In connection with the 2019 representation, respondent told Jackson that she would prepare his 2018 tax returns, a necessary component of the bankruptcy petition, in advance of the September 12, 2019 Meeting of Creditors. Jackson expressed frustration at the delay in respondent's preparation of his 2018 tax returns, noting that respondent was requesting tax-related information that he already had provided to her office.
On September 11, 2019, one day before the first Meeting of Creditors, Jackson appeared at respondent's office to sign his 2018 tax returns, but respondent did not meet with him due to a scheduling conflict. Respondent spoke with Jackson on the telephone and asked him to come back to her office later that day or to meet her just prior to the Meeting of Creditors, the next day, to execute his tax returns. Jackson agreed to meet respondent the next day, prior to the Meeting of Creditors. Respondent confirmed that she would bring Jackson's 2018 tax returns for execution.
On September 12, 2019, respondent appeared for the first Meeting of Creditors, but Jackson did not. Respondent waited two or three hours for Jackson to arrive at the Meeting of Creditors and unsuccessfully attempted to contact him via telephone. Later that day, Jackson called respondent, explaining that he went to the hospital earlier that morning believing he may have had a heart attack, and respondent informed him that he would receive notice of the rescheduled Meeting of Creditors by mail. Respondent also went to Jackson's apartment to do a wellness check but did not speak to him. It is undisputed that respondent never personally spoke to Jackson again after their September 12, 2019 telephone call.
The Meeting of Creditors is a meeting at which the bankruptcy trustee and creditors ask the petitioner questions, under oath, about the petition. See Questions tohttps://www.thebankruptcysite.org/resources/bankruptcy/chapter-13/questions-expect-341-meeting Expect at the 341 Meeting in Bankruptcy | TheBankruptcySite.org (visited June 22, 2022).
On September 17, 2019, respondent sent Jackson a letter, by regular mail, informing him that the September Meeting of Creditors had been rescheduled to October 3, 2019. The regular mail was not returned to respondent's office. Jackson confirmed receipt of "a letter for a new date" but stated that he had stopped trusting respondent. Respondent appeared for the October 3, 2019 Meeting of Creditors but Jackson did not.
The following day, on October 4, 2019, respondent sent Jackson a letter, by regular mail, informing him that the October Meeting of Creditors had been rescheduled to November 1, 2019. In that letter, respondent stated that, based upon Jackson's failure to appear at the two prior Meetings of Creditors, she would not appear at the November 1, 2019 meeting unless she heard from him. The regular mail was not returned to respondent's office. Neither respondent nor Jackson appeared at the November 1, 2019 Meeting of Creditors.
On November 1, 2019, respondent sent Jackson a third letter, by regular mail, informing him that the November Meeting of Creditors had been rescheduled to December 9, 2019, and again stating that she would not appear unless she heard from him. The regular mail was not returned to respondent's office.
Later, on November 18, 2019, respondent sent Jackson a follow-up letter, by regular mail, requesting that he contact her to discuss the December Meeting of Creditors as well as a complaint filed against him, by the State of New Jersey, for fraud related to unemployment benefits. In that fourth letter, respondent stated that she unsuccessfully had attempted to reach Jackson via telephone and reiterated that she would not appear at the December Meeting of Creditors unless she heard from him. Additionally, prior to sending the November 18, 2019 letter, respondent verified Jackson's Plainfield, New Jersey address with the Plainfield Post Office and confirmed that there was no hold on his mail and that no mail had been returned as unable to forward. Subsequently, the regular mail was not returned to respondent's office.
Neither respondent nor Jackson appeared at the December 9, 2019 Meeting of Creditors. Consequently, the bankruptcy trustee filed a motion to dismiss Jackson's Chapter 7 petition based upon Jackson's failure to attend any of the Meetings of Creditors. The certification of service indicated that the bankruptcy trustee served the motion on Jackson, by regular mail, at his Plainfield, New Jersey address.
Jackson appeared on the February 4, 2020 return date for the bankruptcy trustee's motion to dismiss his Chapter 7 bankruptcy petition. However, neither respondent nor the bankruptcy trustee appeared because Jackson had neither opposed the motion nor sought a hearing. Indeed, Jackson told the presiding judge, the Honorable Rosemary Gambardella, U.S.B.J., that he consented to the dismissal of his Chapter 7 petition and that respondent no longer represented him. Notwithstanding Jackson's concession, the bankruptcy court rescheduled the motion to March 17, 2020.
The complaint alleged that respondent failed to contact Jackson's creditors and payroll office, resulting in the continued garnishment of his paychecks. Respondent disputed that allegation and provided proof of her contact efforts.
On February 13, 2020, respondent received a telephone call from a New York attorney who had met with Jackson a few days earlier. The New York attorney stated that Jackson believed that he had been followed by an investigator from respondent's office, that the investigator had tapped his telephone, and that respondent had aided others in his arrest. Respondent assured the New York attorney that she neither employed nor was associated with any investigator. Later that same date, respondent sent an e-mail to the New York attorney, stating "please encourage [Jackson] to call me so he can go to his trustee's meeting, finish his counseling sessions and receive his discharge."
Almost one month later, on March 5, 2020, respondent sent an e-mail to Judge Gambardella, stating that she had received a telephone call from a New York attorney who expressed concerns about Jackson's state of mind and, based thereon, she "respectfully suggest[ed] that the proper security be present in the Court Room and hallways" in the event that Jackson appeared at the bankruptcy proceeding. Respondent noted that, although she had not been in contact with Jackson since September 2019, she contacted Judge Gambardella because the New York attorney provided her with "scary" information and bankruptcy judges typically did not have security in their courtroom.
On May 8, 2020, the DEC notified respondent of Jackson's ethics grievance against her.
Due to the Covid-19 pandemic, the bankruptcy court adjourned the trustee's motion to dismiss several times. At all times, respondent continued to be listed as Jackson's attorney of record, because she had not filed a substitution of attorney or a motion to be relieved as counsel. On July 14, 2020, the bankruptcy court granted the trustee's motion to dismiss Jackson's Chapter 7 bankruptcy petition and entered an order of dismissal.
Based on the above facts, the amended ethics complaint charged respondent with having violated RPC 1.1(a) and (b) by failing to (1) ensure that her letters and the bankruptcy meeting notices reached Jackson by using alternatives to regular mail, such as priority mail, certified mail, overnight mail, or a courier service, (2) prepare and finalize Jackson's 2018 tax returns, and (3) communicate with Jackson via telephone. The complaint charged that the same misconduct also violated RPC 1.3 and RPC 1.4(b).
Next, the amended complaint charged that respondent's March 5, 2020 email to the Honorable Gambardella, relaying confidential information about her client, violated RPC 1.6(a). It further charged that respondent's failure to take protective action to address concerns related to Jackson's mental capacity violated RPC 1.14(a) and (b).
Last, the amended complaint charged that respondent violated RPC 1.16(a)(1) and (7), and further violated RPC 1.3, by continuing to represent Jackson after the filing of his ethics complaint against her.
At the November 17, 2021 ethics hearing, the presenter questioned respondent about her exclusive use of regular mail, suggesting that she also should have used priority mail, certified mail, overnight mail, or a courier service. Respondent replied that she preferred regular mail, noting that any undeliverable regular mail would have been returned to her office.
The presenter also questioned respondent about her failure to seek the appointment of a guardian or conservator for Jackson, despite her concerns about his mental state. Respondent replied that, because she had not spoken to Jackson around the time of the New York attorney's telephone call to her, she did not know Jackson's actual mental state, but had contacted the bankruptcy court out of concern.
Respondent initially denied having continued to represent Jackson in the bankruptcy proceedings after receipt of his ethics complaint. However, she later conceded that she did not file a motion to be relieved as counsel or a substitution of attorney.
In mitigation, respondent argued that the dismissal of Jackson's Chapter 7 bankruptcy petition had not been prejudicial, because it had been dismissed without prejudice and could be re-filed. She also noted her dedication to the legal profession, stating that she regularly performed pro bono work for Middlesex County Legal Services and served as a trustee for a senior boarding home in Somerset County. Respondent's husband and law partner testified that she often visited clients to have them sign documents, sit with them, and explain matters.
In her post-hearing submission, the presenter argued that she had proven respondent's violation of multiple RPCs, relying upon the stipulation and exhibits in the record. Respondent, in turn, argued that the presenter had not proven, by clear and convincing evidence, that she had violated any RPCs. She further stated that her handling of Jackson's bankruptcy petition "demonstrated a high level of professional knowledge and competence, an acute concern for her client's welfare and his legal matter, and . . . [any harm to Jackson], if there was [harm], resulted from his own failure to cooperate."
The hearing panel found that respondent violated RPC 1.3 by solely relying on regular mail to communicate with her client, admittedly failing to attend the November and December 2019 Meetings of Creditors, and making no effort to inform the bankruptcy trustee or the bankruptcy court of her inability to contact Jackson.
Next, the hearing panel found that respondent violated RPC 1.4(b) by failing to ensure that Jackson received her letters and court notices, which she could have done by using alternative methods of communication, and that she, thus, failed to keep Jackson reasonably informed about the status of his bankruptcy matter. It found that respondent further violated RPC 1.4(b) by failing to communicate with Jackson via telephone, noting that she admittedly did not speak to Jackson after September 12, 2019, even though his petition remained active with the bankruptcy court for another ten months.
The panel also found that respondent violated RPC 1.6(a) by revealing information related her representation of Jackson to Judge Gambardella, via her March 5, 2020 e-mail, without any reasonable basis for the disclosure as required by the Rule. The panel noted that respondent asked the New York attorney to "encourage" Jackson to contact her, went to Jackson's residence, and did not express being fearful of Jackson.
Next, the hearing panel found that respondent's failure to (1) ensure that Jackson received her letters and court notices by using alternative methods of mail delivery, (2) prepare and finalize Jackson's 2018 tax returns, and (3) communicate with Jackson via telephone did not rise to the level of gross neglect, in violation of RPC 1.1(a). It determined, however, that respondent exhibited a pattern of neglect, in violation of RPC 1.1(b); in so finding, the panel erroneously coupled her violations of RPC 1.3, RPC 1.4, and RPC 1.6(a) in the instant matter with similar misconduct from her disciplinary history.
The panel also found that the presenter had not proven, by clear and convincing evidence, that respondent violated RPC 1.14(a) and (b). Specifically, it noted that the presenter provided no evidence that Jackson had suffered from a diminished mental capacity. It further noted that Jackson had been sued by the State for unemployment fraud and, therefore, an investigator conceivably had been assigned to that matter and Jackson's concerns about being investigated had not been irrational.
The panel further found that the DEC had not proven that respondent violated RPC 1.16(a)(1) and (b)(7), because that RPC did not require an attorney's withdrawal from representation, but instead outlined situations in which an attorney "may" withdraw.
The panel recommended that respondent be censured for her violations of RPC 1.1(b); RPC 1.3; RPC 1.4(b); and RPC 1.6(a). It declined to consider respondent's pro bono work in mitigation, noting that such service to the bar is customary. The panel considered, in aggravation, respondent's prior discipline for similar misconduct.
In her brief to us, the presenter argued that she had proven respondent's violation of the charged RPCs by clear and convincing evidence. She erroneously agreed with the hearing panel's determination that respondent's misconduct, coupled with her disciplinary history for similar misconduct, constituted a pattern of neglect, in violation of RPC 1.1(b). The presenter also agreed with the hearing panel's recommended censure, in consideration of respondent's misconduct and disciplinary history.
In turn, in her brief to us, respondent, through counsel, argued that her misconduct warranted lesser discipline than the hearing panel's recommended censure. Specifically, she suggested that the misconduct in the instant matter arguably was less severe than prior, similar misconduct for which she had received a reprimand; thus, she asserted that a reprimand was the appropriate quantum of discipline. Respondent again urged us to consider, in mitigation, her contributions to the court, legal profession, and community.
Following our de novo review, we determine that the facts set forth in the record clearly and convincingly support the finding that respondent committed two of the charged RPC violations.
Specifically, RPC 1.3 states that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." Respondent violated RPC 1.3 by admittedly failing to appear at Jackson's November and December 2019 Meetings of Creditors. Her excuse - that Jackson had failed to attend the September and October 2019 Meetings of Creditors and that she had told Jackson that she would not attend subsequent meetings unless she heard from him - is unpersuasive. Indeed, respondent's proper course of action, in response to Jackson's failure to attend the Meetings of Creditors and failure to cooperate with her, would have been to file a motion to be relieved as counsel. Instead, respondent failed to exercise necessary diligence in the representation of her client by failing to appear at Jackson's November and December 2019 Meetings of Creditors, despite acknowledging that she still represented him. Thus, respondent violated RPC 1.3.
Next, RPC 1.6(a) provides, in relevant part, that a lawyer shall not reveal information relating to the representation of a client unless the client consents, after consultation, except if the disclosure is necessary to prevent the client from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another, or which the lawyer reasonably believes is likely to perpetrate a fraud upon the tribunal. That Rule further states that a reasonable belief "is the belief or conclusion of a reasonable lawyer that is based upon information that has some foundation in fact and constitutes prima facie evidence" of the aforementioned circumstances that the attorney seeks to prevent.
It is undisputed that, on March 5, 2020, respondent sent an e-mail to Judge Gambardella, expressing concern about Jackson's mental state and requesting proper security in the event that he appeared for the bankruptcy matter. Jackson's mental state was confidential, personal information. Nothing in the record suggests that Jackson consented to the disclosure of his allegedly concerning mental state, after consultation with respondent, and, therefore, our analysis must focus on the necessity of the disclosure.
Of course, the security and wellbeing of all individuals in the courtroom is a paramount concern. However, there is no evidence in the record to support a reasonable belief that Jackson contemplated committing a criminal, illegal, or fraudulent act likely to result in death or substantial physical or financial harm to another - as RPC 1.6(a) requires for the disclosure of such confidential information, without client consent. Respondent's claim to have been scared by the information provided by the New York attorney is belied by her (1) subsequently requesting that the New York attorney "encourage" Jackson to contact her about finalizing his bankruptcy matter and, thereafter, (2) waiting almost one month to notify the bankruptcy court of her alleged concern about Jackson's mental state. Respondent, thus, violated RPC 1.6(a).
However, there is insufficient evidence to prove, by clear and convincing evidence, that respondent violated the other charged RPCs.
First, RPC 1.1(a) states that "[a] lawyer shall not . . . [h]andle or neglect a matter entrusted to the lawyer in such a manner that the lawyer's conduct constitutes gross negligence." RPC 1.1(b) furthers that "[a] lawyer shall not . . . [e]xhibit a pattern of negligence or neglect in the lawyer's handling of legal matters generally."
As the hearing panel properly concluded, we also determine to dismiss the RPC 1.1(a) charge. As we previously have examined, according to the Report of the New Jersey Supreme Court Committee on the Model Rules of Professional Conduct (Debevoise Committee Report), Section VI Lawyer Competence, Rule 1.1 (June 24, 1983), RPC 1.1 was designed to address "deviations from professional standards which are so far below the common understanding of those standards as to leave no question of inadequacy." Black's Law Online Dictionary defines gross negligence as
A severe degree of negligence taken as reckless disregard. Blatant indifference to one's legal duty, other's safety, or their rights are examples.
A finding of gross neglect, thus, is fact sensitive. In the instant matter, contrary to the allegations of the complaint, respondent performed work to advance Jackson's bankruptcy petition - including preparing his 2018 tax returns for signature on September 12, 2019, promptly sending letters informing him of the date of each rescheduled Meeting of Creditors, after he failed to appear, and unsuccessfully attempting to reach him by telephone. The Rules do not require respondent to utilize alternatives to regular mail; moreover, here, it is clear that the regular mailings reached Jackson.
Respondent, however, failed to attend two Meetings of Creditors, after Jackson failed to appear for two prior meetings and ceased communicating with her. Respondent's failure to attend the subsequent Meetings of Creditors did not align with the professional standard of diligence required of New Jersey attorneys. However, we conclude that her failure in this regard did not rise to the level of reckless disregard. Stated differently, the RPC 1.3 charge adequately addresses this misconduct.
Additionally, for us to find a pattern of neglect, in violation of RPC 1.1(b), at least three instances of neglect, in three distinct client matters, are required. In the Matter of Donald M. Rohan, DRB 05-062 (June 8, 2005) at 12-16. Here, respondent's misconduct involved only one client matter. Thus, we diverge from the hearing panel's decision, dismiss the charged RPC 1.1(b) violation, and consider respondent's failure to learn from past mistakes in aggravation, as discussed below.
Next, RPC 1.4(b) states that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." It is undisputed that respondent sent three letters to Jackson, via regular mail, informing him of each rescheduled Meeting of Creditors, in addition to one follow-up letter, and unsuccessfully attempted to contact him by telephone. None of respondent's letters to Jackson were returned as undeliverable. Indeed, Jackson admitted receipt of at least one letter and the bankruptcy trustee successfully served Jackson with a copy of the motion to dismiss his Chapter 7 bankruptcy petition, via regular mail. Although respondent arguably could have utilized alternatives to regular mail, her failure to do so did not violate RPC 1.4(b).
Additionally, there is no evidence in the record that respondent failed to reply to Jackson's requests for information about his bankruptcy petition or to return his telephone calls. Indeed, although it is undisputed that respondent and Jackson did not speak after September 11, 2019, respondent unsuccessfully attempted to reach him via telephone. Thus, there is insufficient evidence to prove, by clear and convincing evidence, that respondent violated RPC 1.4(b).
Next, RPC 1.14(a) and (b) relate to an attorney's relationship with a client who has a diminished capacity to make adequately considered decisions in connection with the representation and the obligations of the attorney to protect the interests of such a client. As the hearing panel concluded, we also determine to dismiss the RPC 1.14(a) and (b) charges. There is no evidence in the record that Jackson's capacity to make adequately considered decisions in connection with the representation had been diminished or that respondent failed to maintain a normal attorney-client relationship with him.
Similarly, as the hearing panel concluded, we also determine to dismiss the RPC 1.16(a)(1) and (b)(7) charges. It is undisputed that respondent continued to be Jackson's attorney of record in the bankruptcy matter, after the filing of Jackson's ethics grievance against her. However, there is no evidence in the record that respondent's continued representation resulted in a violation of the RPCs or other law, in violation of RPC 1.16(a)(1). The record likewise contains no other good cause for respondent's withdrawal under RPC 1.16(b)(7), which is permissive and not mandatory. Therefore, we dismiss the RPC 1.16(a)(1) and (b)(7) charges.
In sum, we find that respondent violated RPC 1.3 and RPC 1.6(a). We determine to dismiss the charges that respondent further violated RPC 1.1(a); RPC 1.1(b); RPC 1.4(b); RPC 1.14(a); RPC 1.14(b); RPC 1.16(a)(1); and RPC 1.16(b)(7). The sole issue left for us to determine is the appropriate quantum of discipline for respondent's misconduct.
Generally, an admonition is the appropriate form of discipline for lack of diligence and failure to communicate with the client (a charge not found here). See, e.g., In the Matter of Kourtney Anna Borchers, DRB 21-237 (February 22, 2022) (the attorney failed to adequately prepare her client's post-judgment motion for seven months, forcing the client to hire new counsel to complete the motion, and failed to promptly reply to the client's reasonable requests for information; in aggravation, the matter represented the attorney's second disciplinary proceeding in three years); In the Matter of Christopher G. Cappio, DRB 15-418 (March 24, 2016) (after the client had retained the attorney to handle a bankruptcy matter, paid his fee, and signed the bankruptcy petition, the attorney failed to file the petition or to return his client's calls in a timely manner); In the Matter of Charles M. Damian, DRB 15-107 (May 27, 2015) (attorney filed a defective foreclosure complaint and failed to correct the deficiencies, despite notice from the court that the complaint would be dismissed if not cured; after the court dismissed the complaint, the attorney took no action to vacate the dismissal, a violation of RPC 1.3; the attorney also failed to tell the clients that he had not amended the original complaint or filed a new one, that their complaint had been dismissed, and that it had not been reinstated, a violation of RPC 1.4(b); in mitigation, the attorney had no other discipline in thirty-five years at the bar; staffing problems in his office negatively affected the handling of the foreclosure case; he was battling a serious illness during this time; and other family-related issues consumed his time and contributed to his inattention to the matter).
Attorneys who divulge confidential client information typically receive an admonition or a reprimand, depending on the circumstances. See, e.g., In the Matter of Phillip L. Lucas, DRB 19-085 (June 25, 2019) (admonition; the attorney represented a physician's assistant in the formation of a limited liability corporation; after the client's arrest for practicing medicine without a license, the attorney gave a formal statement to the Monmouth County Prosecutor's Office about the nature and scope of his representation, without being compelled to do so, and without his client's consent, in violation of RPC 1.6(a); the attorney also violated RPC 1.5(b); in mitigation, the attorney cooperated with the disciplinary authorities; admitted his wrongdoing; lacked malicious intent in communicating with the prosecutor's office; had an unblemished disciplinary record in his forty-seven years at the bar; and engaged in extensive community service); In the Matter of Richard L. Seltzer, DRB 13-315 (January 28, 2014) (admonition; the attorney shared information that, although not confidential, generally had not been known to the public, in violation of RPC 1.9(c)(1) and (2) (improperly using information to the detriment of a former client); specifically, while serving as the assistant and, later, acting Montclair Township attorney, the attorney acquired information that he shared with a former coworker's attorney to assist in the co-worker's wrongful discharge action against Montclair Township; in mitigation, the attorney had an unblemished disciplinary record in more than thirty years at the bar and lacked malicious intent; additionally, it had been almost ten years since the misconduct occurred); In re Lord, 220 N.J. 339 (2015) (reprimand; attorney forwarded to her adversary a copy of a letter to her clients that contained confidential attorney-client information, in violation of RPC 1.6(a); the attorney also violated RPC 1.7(a)(2) (engaging in a conflict of interest) and RPC 1.16(d) (improperly terminating a representation); in mitigation, the attorney had no prior discipline in more than thirty years at the bar); In re Chatarpaul, 175 N.J. 102 (2003) (reprimand; attorney, with the assistance of non-lawyer staff, sent a letter to his client threatening to divulge the client's privileged information to collect outstanding legal fees, in violation of RPC 1.6(a); the attorney also violated RPC 5.3(a) (failing to adequately supervise a non-lawyer); RPC 5.3(c)(2) (failing to take remedial action in respect of misconduct by non-lawyer); RPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer); RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and RPC 8.4(d) (engaging in conduct prejudicial to the administration of justice); in mitigation, we considered the attorney's inexperience and remorse)); In re Hopkins, 170 N.J. 251 (2001) (reprimand; the attorney represented two divorcing couples in their uncontested divorces; the attorney knew that, upon the dissolution of the marriages, two of the ex-spouses planned to marry each other; while their matters were pending, the attorney discussed the intended groom's confidential financial information with the intended bride, in violation of RPC 1.6(a); the attorney also violated RPC 1.4(a), RPC 1.5(b), and RPC 1.7(a)).
Just like the attorneys in Borchers, Cappio, and Damian, respondent failed to act with diligence in the representation of her client, in violation of RPC 1.3. Like the attorneys in Lucas and Seltzer, respondent improperly disclosed confidential information about her client. Unlike the attorneys in Lord and Hopkins, who received reprimands, respondent did not share her client's confidential information with an adverse party or their attorney. And, unlike the attorney in Chatarpaul, who also received a reprimand, respondent did not threaten her client.
In our view, given the unique facts of respondent's RPC 1.6(a) violation, the totality of respondent's misconduct warrants an admonition. In crafting the appropriate discipline, however, we also consider aggravating and mitigating factors.
In aggravation, respondent's client suffered harm as a result of having to refile his Chapter 7 bankruptcy petition, if he so desired, after its dismissal, without prejudice. However, notably, Jackson consented to the dismissal.
In further aggravation, this matter represents respondent's fourth disciplinary proceeding. Specifically, in 1996, respondent received an admonition (Wright I), in 1998, she received a reprimand (Wright II), and, in 2013, she received a second reprimand (Wright III). More specifically, and relevant to this instant matter, in Wright II, in two client matters, respondent failed to diligently represent and adequately communicate with clients about the status of their matters, in violation of RPC 1.3 and RPC 1.4(a) and (b). In imposing the 1998 reprimand, we considered respondent's 1996 discipline for having violated RPC 1.4(b). Similarly, the instant matter represents respondent's second disciplinary proceeding for having violated RPC 1.3.
In mitigation, respondent did not maliciously disclose her client's alleged mental state to the bankruptcy court, but instead acted out of an abundance of caution, albeit unreasonably. She also has a history of pro bono service to the bar.
On balance, we determine that the aggravating factors support the enhancement of the baseline admonition to a reprimand.
Chair Gallipoli and Members Menaker and Rivera voted to impose a censure.
Member Joseph was absent.
We further determine to require respondent to reimburse the Disciplinary Oversight Committee for administrative costs and actual expenses incurred in the prosecution of this matter, as provided in R. 1:20-17.
Disposition: Reprimand
Members Reprimand Censure Absent Gallipoli X Boyer X Campelo X Hoberman X Joseph X Menaker X Petrou X Rivera X Singer X Total: 5 3 1